Ever since the Nixon administration, Justice Department guidelines have required the attorney general's approval of all subpoenas of journalists or of their phone records from third parties.
The most recent iteration of the guidelines don't give journalists a complete bye. But by directing prosecutors to cool their jets before issuing a subpoena—exhausting alternative sources of information before issuing a subpoena, encouraging prosecutors to negotiate with reporters beforehand, and avoid subpoenas that fish for information—a truce of sorts between the feds and the press has been maintained. (See this fact sheet, from which I've drawn.)
Because the attorney general signs off on journalist subpoenas, his views on what constitute right and proper subpoenas hold extreme relevance for reporters and news consumers. Norman Pearlstine, former supreme editor of Time Inc. and before that managing editor of the Wall Street Journal, wants such an audit of Attorney General Alberto R. Gonzales' brain for a book he's writing about confidential sources. To that end he's filed a Freedom of Information Act request asking the AG for the complete paper trail behind his approvals of grand-jury subpoenas of journalists in three recent high-profile investigations.
Pearlstine wants the paperwork on the approval process for subpoenas of San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams, who have been charged with contempt for refusing to answer questions about how they obtained grand-jury testimony in the BALCO steroid investigation; videographer Josh Wolf, who has been jailed for refusing to surrender tape that is alleged to show protesters destroying a police car; and of the phone records of New York Times reporters Judith Miller and Philip Shenon in a federal investigation of Islamic charities.
Written for Pearlstine by attorney Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher LLP, the FOIA casts Gonzales as a one-man judicial system and argues that he should be as transparent about his decisions as any court is.
"I don't know what guidelines Gonzales was reading," Pearlstine says in today's (Dec. 22) Wall Street Journal, "but I don't see how these cases fit into the Justice Department's own guidelines about subpoenas."
It could be that Gonzales created no paper trail in approving the subpoenas. If so, that could be as damaging to his reputation as two pages of legal-pad doodling. It would indicate that these guidelines, praised by journalists everywhere as well as former Democrat and Republican AGs, mean nothing to Gonzales and that he rubber-stamps whatever subpoena requests blow by his door. Pearlstine is sure to get a good chapter out of this for his book.
In other billable First Amendment hours this week, Boutrous and his firm filed a motion at the behest of Dow Jones and the Associated Press. The motion asks the U.S. Court of Appeals for the District of Columbia Circuit to release some or all of the unredacted portions of Judge David Tatel's opinion that ordered Matthew Cooper and Judith Miller to testify before a grand jury in the Valerie Plame investigation. The motion also asks for the release of special prosecutor Patrick Fitzgerald's sealed affidavits.
Like Pearlstine's FOIA of Gonzales, the motion's aim is journalistic. It hopes to reveal the logic of compelling Cooper and Miller to answer the subpoena even though, as we have subsequently learned, special prosecutor Fitzgerald knew from the beginning of the case that Deputy Secretary of State Armitage had leaked Plame's name to columnist Robert Novak.
Unsealing Judge Tatel's decision, the motion states, "will allow the public to gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters, and why it was necessary to imprison one of those journalists [Miller] for 85 days for refusing to divulge her conversations with a different government official, I. Lewis 'Scooter' Libby."
The motion maintains that because Armitage has outed himself as the leaker, and potential indictee Karl Rove's attorney was told his client will not be charged in the case, the law no longer requires such a high level of secrecy.
Special prosecutors such as Fitzgerald wield the powers of a mini-attorney general: They, not the AG, conduct their own reviews of whether a subpoena is proper. Like the FOIA fired at Gonzales, this motion means to pry lose from the responsible parties the precise justification for compelling testimony from reporters.
So all I really want for Christmas this year is Gonzales' paperwork, Judge Tatel's unredacted opinion, and Fitzgerald's affidavits. Tied up in a bow, please.
If Pearlstine gets a chapter out of the Gonzales FOIA, I imagine David Corn and Michael Isikoff's paperback will mine a sparkling afterword out of the material freed by the Dow Jones/AP motion. And what do you want for Christmas from the First Amendment, dear reader? Send your pitiful requests to email@example.com. (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)
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